City of Rock Island v. Cuinely

• Court: Illinois Supreme Court
• Writing for the Court: SHOPE
• Citation: City of Rock Island v. Cuinely, 126 Ill. 408, 18 N.E. 753 (Ill. 1888)
• Decision Date: 15 November 1888
• Parties: CITY OF ROCK ISLAND v. CUINELY.

126 Ill. 408

18 N.E. 753

CITY OF ROCK ISLAND

v.CUINELY.

Supreme Court of Illinois.

November 15, 1888.

Appeal from appellate court, Second district.

Action by Bridget Cuinely against the city of Rock Island for injuries alleged to have been sustained by reason of a defect in defendant's sidewalk. Plaintiff's second, third, and sixth requests to charge were as follows: ‘(2) The jury are instructed that the city of Rock Island has the control of the sidewalks of the city, and it is the duty of the city to exercise reasonable diligence to keep the same in reasonable and safe condition and repair; and if the jury believe, from the evidence, that the side walk on Seventh street in said city, where the plaintiff fell and received her alleged injury, was defective, and said defect was the cause of plaintiff's falling, while using due care and diligence upon her part, and that such defect had existed before the accident for such a length of time that, by the exercise of ordinary care and diligence, the city might have discovered and repaired the same, but it did not do so,-then the city would be guilty of negligence, and would be liable for any injury which was the natural and proximate result of such negligence. (3) The court further instructs the jury that, if they believe from the evidence that the sidewalk on Seventh street, where the alleged injury was received by plaintiff, was in a defective condition, and unsafe to persons traveling thereon, then, in considering the question whether defendant had notice of such condition, or that it might have had notice of such condition by the exercise of due care and diligence, the jury should take into consideration the evidence offered as to the public character of Seventh street, the public travel thereon, and all other facts and circumstances admitted in evidence tending to prove the public character of that locality; and if the jury believe, from a consideration of the evidence, that the defendant had notice of the defective condition of the sidewalk, if such defective condition is proved, or that it could have known of such defective condition by the exercise of due care and diligence on its part, then the question of notice of such alleged defect is established for all the purposes of this case.’‘(6) If the jury believe, from the evidence, that the plaintiff was injured by reason of the defendant's negligently failing to keep its sidewalk in reasonable good repair, or negligently allowed the same to remain in an unsafe condition, as explained in these instructions, and without fault on her part, and that she sustained damage, then the jury have a right to find for her such an amount of damage as the jury may believe, from the evidence, will compensate her for the personal injury so received, as for the expenses, if such were proved, as she has incurred in endeavoring to be cured, and also for the pain and suffering undergone by her, and for any permanent injury she has suffered, if any such has been proved, not exceeding $2,000.’ The following was the ninth instruction asked for by defendant: ‘(9) The court instructs the jury that the plaintiff can only recover such damages in this case as were actually sustained by her at the time of the accident, in manner and form as she has alleged in her declaration, and such as are the legitimate results of said injuries so received; that in no event can she recover damages which are the result of her own negligence in taking improper care of herself after receiving the injuries complained of at the time of the accident; and if the jury believe, from the evidence in this case, that the plaintiff, after receiving the injuries complained of, did not take proper care of herself, and as a result of such neglect has sustained additional injuries, which are not the natural result of the accident complained of, then, for such additional injuries she cannot recover, and it is incumbent upon her to show the actual damage she has sustained, if any, by the accident.’ Judgment on a verdict for plaintiff was affirmed in the appellate court, and defendant appeals.J. T. Kenworthy, for appellant.

William McEniry and William Jackson, for appellee.

SHOPE, J.

Appellee recovered, in the Rock Island circuit court, against appellant, the city of Rock Island, a judgment for $1,100 for personal injuries occasioned, as it is alleged, by falling upon a defective sidewalk, which it was the duty of the city to keep in repair. That judgment was affirmed in the appellate court, and this further appeal is prosecuted by the city. It is objected there is a material variance between the allegations of the declarations and proof, both as to the cause and character of the injury. The declaration, after averring the duty of the city to keep the particular sidewalk in repair, etc., alleges that the defendant, not regarding its duty, etc., ‘wrongfully and negligently suffered the same to be and remain in bad and unsafe repair and condition, and divers of the planks wherewith the sidewalk was laid to be and remain broken, loose, and unfastened to the stringers thereof, by means whereof,’ etc. The evidence shows that the sidewalk was in bad and unsafe condition, that the planks were loose and unfastened to the stringers, and that the injury to appellee was occasioned thereby; but it does not show that any of the planks were broken. This was immaterial. The rule is that the allegation of the declaration must be broad enough to let in the proof, and that no evidence will sustain a verdict that does not find support in such allegation. But, in actions for torts, is by no means follows that every allegation of matters of substance must be proved. In general, it will be sufficient if enough of the facts alleged in the declaration are proved to constitute a cause of action. ‘There is,’ says Chitty, ‘a material distinction between the statement of torts and of contracts, the former being divisible in their nature, and the proof of part of a tort or injury being, in general, sufficient to support the declaration.’ 1...